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Think about the following:
Huge stories perhaps on a collision course. One about law-breaking actions of the NSA (and much more reality about the december NSA fisa-less searches). The other about Bush's practice of flaunting the Constitution by defying the balance of powers (Congress legislates, the Executive Vetoes or signs into law and carries out the law) - by signing into law and then failing an extra-constitutional signing statement (more than 750 times as of two weeks ago) asserting which parts of the law he does not believe he has to comply with.
A third recent story suggests how the administration might try to weasel an explanation - indicates a potential direct confrontation between the above two stories. When being forced to explain the implication that it was Bush (or Cheney) himself who allowed the leaking of the Plame information - an odd explanation was offered. That since the President has the authority to classify information, he has the authority to (informally in this case, though it is disputed that it can be done informally as their is a declassification process) declassify - and that he declassified cherry-picked portions of an NIE that following some contorted logic made it okay for Libby to leak. Byzantine logic (that is still hard for me to follow) that comes down to: as commander in chief and president, what I say goes.
It appears to me that these stories will inevitably collide.
Given that there is a record that congress expressly turned down fisaless searches, the "I have the authority to do so..." can come from a direct thumbing the nose at the Constitution - another "Bring It On!" moment, by declaring that a signing statement made this a legit action by the President. A bold and arrogant stand, in terms of forcing a confrontation per the signing statement issue - and answering the claims of bush supporters that a signing statement was just an 'on the record statement of beliefs, not necessarily indicative of taking action in opposition of laws passed by Congress'.
One would think that they would not be eager to put the entire record of the administration on the firing block by forcing some kind of reconciliation of long-standing Constitutional practices vs the bushco version of Constitutional authority of the executive branch. Especially given the revelation of how often the administration has used this vehicle of a 'signing statement' to voice a belief that the admin could ignore part (or all) of a law passed by Congress and signed by the President into law, and given the broad range of laws upon which the administration has used the signing statement. It would seem that this would open a can of worms which would end up in review of actions of much of this administration - and wind up tying the govt up in lawsuits of magnitude (in terms of numbers) to the point of complete chaos.
However, it is hard to fathom any other rationale the Administration can use to justify this/these programs. Indeed, such a rationale is perfectly in-line with their past claims and justifications for actions and the arrogance with which bushco runs the country. It would go something along the lines of "protecting all americans... giving up freedoms in order to provide safety from terrorists... and the authority to do so because he is the president - and according to legal counsel was within his rights to order such actions in order to carry out his full role as "Commander in Chief" in the War on Terror and covered by his... signing statement.
Crash Bang. Bring it On! Now comes a direct potential battle on the Constitutional Crisis front.
But from which other branch will the full assault come? Congress?
Sure there are expressions of outrage - but just days after the revelations about the massive use of signing statements used by the president to express defiance of the laws passed by congress, Libby Dole - as chair of the Republican Senate Campaign Committee sent out a fund raising letter which emphasized the need to reelect Republicans to the Senate to prevent Democrats from launching investigations of the administration. In short she says: fund us, so we can continue to not provide oversight over the administration, as we do not believe in the Constitution's system of checks and balances. This suggests it is doubtful that Congress will take a stand - or if it does it will be symbolic - on this issue of the data-mining and completely ignoring the claims of legitimacy on the part of the administration per the use of Signing Statements.
So will the assault come from the Courts? Hard to tell - but at this moment more likely than from Congress. Numerous times in recent years courts have turned back some egregious actions of the administration - I think if it is demonstrated that the executive branch is ACTING on its signing statements that at least some courts will turn back some of the actions.
But what about the other 750+ signing statements - and investigating the degree to which the administration uses the signing statements as 'law' (that is following the president's statements rather than the laws as written by congress?) If Congress remains weak (as indications suggest - and while some can point to problems with both parties - none can dispute that it is the large size of the republican majorities which create an atmosphere that keeps the craven GOP led-congress weak in the face of the administration) - and the courts can only act on cases brought to them... then we are in an era of great need for an independent, investigative media - to bring more examples/stories to light - so that where the court cases should be brought (examples of extra-constitutional actions of the exec branch, per carrying out law based on signing statements) - can be known, and thus lawsuits pursued.
Hard to tell how this will play out.
Of course this is all speculative. Perhaps the administration will weasel out some other way. But to me, it appears that these stories (the NSA story and the Signing Statement practices) are careening toward a collision that could force the Constitutional Crisis question into the mainstream. It is almost impossible to fathom the ramifications, the ripples, and the implications for the future if/when the 750+ signing statements get called into question. A government suddenly fully consumed with lawsuits filed against it, grinding to a slow halt in its regular functions? Or worse, an alteration of our constitutional system were bushco's right to change law via signing statements upheld?
Scary times, these. IMO, these are also going to be historic times - in the sense of shifts and changes that will result in the end of this era in ways we can not yet predict - but in ways that will shift our history in the future. We have long since left "business as usual."
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